IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Lisa M. Baker, :

Plaintiff : Civil Action 2:12-cv-00264

v. : Judge Watson

Carolyn W. Colvin, Acting : Magistrate Judge Abel

Commissioner of Social Security,

Defendant :

REPORT AND RECOMMENDATION

Plaintiff Lisa M. Baker brings this action under 42 U.S.C. § 1383(c)(3) for review

of a final decision of the Commissioner of Social Security denying her application for 

Supplemental Security Income benefits. This matter is before the Magistrate Judge for

a report and recommendation on the parties’ cross-motions for summary judgment.

Summary of Issues. Plaintiff alleges disability beginning April 1, 1994 due to

epilepsy and damage to the spine. The administrative law judge concluded that plaintiff

retained the residual functional capacity to perform a reduced range of light work and

that she was able to perform her past relevant work as a fast food worker. 

Plaintiff argues that the decision of the Commissioner denying benefits should be

reversed because:

• The administrative law judge failed to consider whether Baker met or equaled

Listing 12.05C; and, 

• The administrative law judge failed to properly evaluate plaintiff's credibility.

Procedural History. Plaintiff Lisa M. Baker filed her application for disability

insurance benefits on July 22, 2009, alleging that she became disabled on April 1, 1994,

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at age 17, by a severe learning disability, scoliosis, severe back problems and a reading

disability. (R. 117, 146.) The application was denied initially and upon reconsideration. 

Plaintiff sought a de novo hearing before an administrative law judge. On March 22,

2011, an administrative law judge held a hearing at which plaintiff, represented by

counsel, appeared and testified. (R. 23.) A vocational expert also testified. On April 6,

2011, the administrative law judge issued a decision finding that Baker was not disabled

within the meaning of the Act. (R. 18.) On February 6, 2012, the Appeals Council

denied plaintiff’s request for review and adopted the administrative law judge’s

decision as the final decision of the Commissioner of Social Security. (R. 1-3.)

Age, Education, and Work Experience. Lisa M. Baker was born January 18,

1977. (R. 117.) She completed the eighth grade. She was in special education classes. 

(R. 224.) She has worked as a bagger at a grocery store, a fast food cook, and a runner at

a thrift store. She last worked August 1, 2006. (R. 147.) 

Plaintiff’s Testimony. Baker testified that she was 34. She lived with her 14 year

old daughter in an apartment. Baker drove two to three times a week. She drove to the

store and occasionally took her daughter to school. Baker testified that she finished the

eighth grade, but she cannot read or write. Her mother had been told that she was at a

third grade reading level. The welfare department sent her to remedial classes, but they

did not help.

Baker last worked five years ago. Her last job was at Tim Horton’s as a baker. She

left that job after about six months when she was asked to work the cash register. This

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was the longest job she had ever held. She testified that she had not participated in

vocational rehabilitation. Her inability to read and write and her back problems

prevented her from working. 

Her back caused her a lot of pain. She can only stand and sit for 15 to 20 minutes.

At times, she could sit or stand for half an hour. She had not received treatment since

October because she was pregnant. She also testified that she did not like being around

people because of anxiety. She has not been to physical therapy or a pain clinic for her

back pain. 

Plaintiff testified that her anxiety caused her stay home a lot. She has not had

therapy for her anxiety. Because of her back pain, Baker is not supposed to lift anything

over 15-20 pounds. Her ability to walk depends on how her back is feeling. On a good

day, she could stand for about 20-30 minutes. She could sit for 20-30 minutes. Plaintiff is

able to do the laundry if her daughter carries downstairs for her. Baker dresses herself

and does her own grooming and bathing. She prepares meals sometimes and goes

grocery shopping with the help of her daughter. It is difficult for plaintiff to vacuum

and sweep. Plaintiff also reported difficulty sleeping. 

(R. 27-43.) 

Medical Evidence of Record. The administrative law judge’s decision fairly sets

out the relevant medical evidence of record. This Report and Recommendation will

only briefly summarize that evidence.

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Physical Impairments. 

Between October 2002 and October 2010, Baker was seen sporadically by her

family physician, Dr. Richard McCarty for a variety of complaints ranging from

requests for medication refills, concerns about pregnancy, and general bouts of illness.

A November 5, 2004 x-ray of plaintiff’s spine showed a relatively severe dextroscoliotic curvature of the thoracic spine. She also had a more moderate levoscoliotic

curvature of from the superior end plate at T12 through the inferior end plate of L4.

Plaintiff had only minimal degenerative changes. (R. 206.) 

Robert C. Woskobnick, D.O. On September 3, 2009, Dr. Woskobnick performed a

consultative examination of plaintiff at the request of the Bureau of Disability Determination. Baker reported a history of scoliosis. For the past two to three years, she had

experienced shoulder pain, greater on the right than the left. She last worked baking at

Tim Hortons, but she stopped based on her back pain and illiteracy. She reported that

she had a third grade reading ability and that she had difficulty following instructions

and reading and writing on the job. She finished the eighth grade in special education. 

On physical examination, plaintiff had a normal gait without any assistive

devices. Baker had crepitus of the range of motion of the shoulders bilaterally, although

her range of motion was intact. Plaintiff had decreased range of motion of the dorsal

lumbar spine. She was able to do a deep knee bend to 50%. Dr. Woskobnick diagnosed

a history of scoliosis of back with decreased range of motion; bilateral shoulder pain,

right greater than left, depression and anxiety; and illiteracy. Dr. Woskobnick con4

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cluded that plaintiff would have difficulty with prolonged standing, lifting and repetitive motion activities with the trunk. Her illiteracy would impair her ability to do any

other work than manual labor. (R. 224-26.)

A September 3, 2009 x-ray of plaintiff’s right shoulder was normal. (R. 227.) 

Walter Holbrook, M.D. On November 9, 2009, Dr. Holbrook, a state agency

reviewing physician, completed a physical residual functional capacity assessment. Dr.

Holbrook opined that plaintiff could occasionally lift and/or carry 20 pounds and

frequently lift and/or carry 10 pounds. She could stand and/or walk for about 6 hours

in an 8-hour day. She could sit for about 6 hours in an 8 hour day. Plaintiff was limited

in her upper and lower extremities with respect to pushing and/or pulling. 

Dr. Holbrook noted that plaintiff’s peripheral pulses were 2/4 bilaterally. There

was evidence of crepitus in the range of the motion of her shoulders, although her range

of motion was intact. Plaintiff had decreased range of motion in the dorsal lum-bar

spine. She could do a deep knee bend 50%. She had DTS in both her upper and lower

extremities. Straight leg raising was negative. 

Plaintiff could occasionally stoop and crawl. Baker was limited in her ability to

reach. Dr. Holbrook noted that plaintiff reported that she could lift 10-15 pounds.

Plaintiff was independent in her personal care. She was able to perform household

chores and had learned to live with her chronic pain and scoliosis. Her MDI’s of

scoliosis and shoulder pain were documented and could cause her symptoms. Dr.

Holbrook concluded that plaintiff’s described limitations were consistent with the

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medical and non-medical evidence and that her statements regarding her symptoms

were credible. (R. 257-64.)

Dimitri Teague, M.D. On March 16, 2910, Dr. Teague, a state agency reviewing

physician, completed a physical residual functional capacity assessment. Dr. Teague

opined that plaintiff could occasional lift and/or carry 20 pounds and frequently lift

and/or carry 10 pounds. Baker could stand and/or walk for about 6 hours in an 8 hour

day. She could sit for about 6 hours in an 8 hour day. Dr. Teague opined that plaintiff

could never climb ladders, ropes or scaffolds. She could occasionally stoop and crouch.

Baker was limited in her ability to reach. 

Dr. Teague concluded that plaintiff’s statement were mostly consistent with the

medical findings. Plaintiff reported that she could lift anything over a certain amount of

wait and that she could not sit or stand for long periods of time. She reported constant

pain and an inability to get comfortable when sleeping or sitting. (R. 277-84.)

Psychological Impairments. 

Scott Lewis Donaldson, Ph.D. On September 8, 2009, Dr. Donaldson, a psychologist, performed a consultative examination for the Bureau of Disability Determination. Plaintiff reported that she was applying for Social Security because she had a

severe learning disability, bipolar disorder and mood swings. 

On mental status examination, Dr. Donaldson described plaintiff’s mood as agitated with flat affect. Plaintiff reported symptoms of mania including increased talkativeness, increased goal-directed activity, and psychomotor agitation. She reported

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tearfulness four to five times per week. Plaintiff reported feelings of guilt, hopelessness,

helplessness and worthlessness. She reported a depressed most of the day, a diminished

interest in activities, insomnia, psychomotor agitation, and a lack of concentration.

Baker reported anxiety in social situations and excessive worrying. She was restless,

edgy, easily fatigued, irritable, and had difficulty concentration. She experienced

muscle tension, tremors, excessive perspiration, bruxism, and a sleep disturbance. She

paced. 

Plaintiff described her daily activities as cooking and doing laundry. She had two

to three friends, but she did not have any hobbies. She shopped for groceries one to two

times a week.

Dr. Donaldson administered the Wechsler Adult Intelligence Scale, 4th edition

(“WAIS-IV”). Plaintiff achieved a verbal IQ score of 70, a performance IQ score of 82, a

working memory IQ score of 63, a processing speed IQ score of 76, and a full IQ score of

69. Plaintiff fell within the intellectually impaired range. Dr. Donaldson noted that

plaintiff seemed to understand the test instructions and did not appear distracted or

respond to queries incorrectly. He further noted, however, that previously administered

measures of cognition indicated that Baker functioned in the average range, so these

results might not be valid. 

Dr. Donaldson diagnosed major depressive disorder and generalized anxiety

disorder. He deferred diagnosing plaintiff on Axis II. Dr. Donaldson opined that Baker’s

ability to understand, remember, and carry out one or two step job instructions did not

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appear impaired. Her ability to perform repetitive tasks does not appear limit-ed. He

noted that plaintiff’s motivation might be moderately limited based on her depression

and anxiety. She had moderate limitations in her abilities to respond to relevant stimuli

and to relate to supervisors and co-workers. He ability to withstand the stress and

pressures associated with day-to-day work was moderately limited. (R. 232-37.)

Aracelis Rivera, Psy.D. On October 6, 2009, Dr. Rivera, a state agency reviewing

psychologist, completed a mental residual functional capacity assessment. Baker was

moderately limited in her ability to remember locations and work-like procedures. She

was moderately limited in her abilities to carry out detailed instructions, to maintain

attention and concentration for extended periods, to work in coordination with or proximity to others without being distracted by them, and to complete a normal workday

and workweek without interruptions from psychologically based symptoms and to

perform at a consistent pace without an unreasonable number and length of rest periods. With respect to social interaction, plaintiff was moderately limited in her abilities

to interact appropriately with the general public, to accept instructions and respond

appropriately to criticism from supervisors, and to get along with co-workers or peers

without distracting them or exhibiting behavioral extremes. Baker had moderate limitations in her ability to set realistic goals or make plans independently. 

Dr. Rivera noted that plaintiff had achieved a full scale IQ score of 93 in 1989.

Plaintiff had maintained past employment in restaurant work. She quit these positions

when she was asked to work at the cash register. She had capable of performing other

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job duties adequately. With respect to her activities of daily living, plaintiff was

independent in personal care and caring for her child. She performed household chores

without reminders or encouragement. She handled her own finances. Plaintiff did not

think that she could write a check. She cannot operate an ATM. She could operate a

washer, dryer and microwave if they were not digital. Dr. Rivera opined that plaintiff

maintained the capacity to perform simple and mildly complex tasks of repetitive

nature with superficial social interactions and no fast-paced or strict production

requirements. Plaintiff’s allegations were credible. (R. 239-42.)

Dr. Rivera also completed a psychiatric review technique. Plaintiff was diagnosed with major depressive disorder and generalized anxiety disorder. Plaintiff had mild

restriction of activities of daily living, moderate difficulties in social functioning, moderate difficulties in maintaining concentration, persistence or pace, and no episodes of

decompensation. (R. 243-56.) 

Kristen Haskins, Psy.D. On March 11, 2010, Dr. Haskins, a state agency reviewing psychologist, reviewed the evidence of record and concluded that Dr. Rivera’s

conclusions were consistent with the record. Dr. Haskins noted that plaintiff did not

received any psychiatric treatment although she was prescribed Xanax and Soma for

anxiety by her primary care physician. (R. 274.) 

Administrative Law Judge’s Findings. 

1. The claimant has not engaged in substantial gainful activity since

July 15, 2009, the application date (20 CFR 416.971 et seq.).

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2. The claimant has the following severe impairments: scoliosis,

shoulder strain, borderline intellectual function, major depressive

disorder, and general anxiety disorder (20 CFR 416.920(c)).

3. The claimant does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 416.

920(d), 416.925 and 416.926).

4. After careful consideration of the entire record, the undersigned

finds that the claimant has the residual functional capacity to perform a limited range of light work as a defined in 20 CFR 416.967

such that the claimant can lift and carry 20 pounds occasionally,

and 10 pounds frequently, sit for a total of 6 hours in an 8-hour

workday, with normal breaks, stand and walk for a total of 6 hours

in an 8-hour workday, with normal breaks and push and pull

within these limitations. She is limited to frequent overhead

reaching, and can never climb ladders, ropes, or scaffolds. The

claimant can only stoop and crouch on an occasional basis, and is

limited to simple, routine, and repetitive tasks, with superficial

social interaction and no fast pace or strict production pace.

5. The claimant is capable of performing past relevant work as a fast

food worker. This work does not require the performance of workrelated activities precluded by the claimant's residual functional

capacity (20 CFR 416.965).

6. The claimant has not been under a disability, as defined in the

Social Security Act, since July 15, 2009, the date the application was

filed (20 CFR 416.920(f&g)).

(R. 11-18.) 

Standard of Review. Under the provisions of 42 U.S.C. §405(g), "[t]he findings

of the Commissioner as to any fact, if supported by substantial evidence, shall be

conclusive. . . ." Substantial evidence is "'such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion.'" Richardson v. Perales, 402 U.S. 389,

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401 (1971)(quoting Consolidated Edison Company v. NLRB, 305 U.S. 197, 229 (1938)). It is

"'more than a mere scintilla.'" Id. LeMaster v. Weinberger, 533 F.2d 337, 339 (6th Cir.

1976). The Commissioner's findings of fact must be based upon the record as a whole. 

Harris v. Heckler, 756 F.2d 431, 435 (6th Cir. 1985); Houston v. Secretary, 736 F.2d 365, 366

(6th Cir. 1984); Fraley v. Secretary, 733 F.2d 437, 439-440 (6th Cir. 1984). In determining

whether the Commissioner's decision is supported by substantial evidence, the Court

must "'take into account whatever in the record fairly detracts from its weight.'" Beavers

v. Secretary of Health, Education and Welfare, 577 F.2d 383, 387 (6th Cir. 1978)(quoting

Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1950)); Wages v. Secretary of Health and

Human Services, 755 F.2d 495, 497 (6th Cir. 1985).

Plaintiff’s Arguments. Plaintiff argues that the decision of the Commissioner

denying benefits should be reversed because:

• The administrative law judge failed to consider whether Baker met or equaled

Listing 12.05C. Plaintiff argues that there is substantial evidence demonstrating that she met Listing 12.05C. Although Dr. Donaldson noted that

previously administered measures indicated that plaintiff was in the average

range, he did not provide any information regarding the previous scores. He

indicated that Baker seemed to understand the test instructions and appeared

to respond to queries correctly. Baker has additional severe impairments, and

Listing 12.05C is met where a claimant had an IQ in the prescribed range and

was limited to no more than light activity work. Plaintiff maintains that she

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satisfies the requirement of subaverage general functioning with adaptive

deficits manifested prior to age 22. Plaintiff was in special education classes

and dropped out of school following the eighth grade. Her ability to read and

write is limited. She can read her name and basic street names, but not a

newspaper headline. As an adult, she was in remedial education classes, but

she did not improve. She has been forced to give up jobs when asked to

perform tasks that were too complex for her. Plaintiff further argues that the

administrative law judge erred by adopting the opinions of state agency

psychologists who relied upon an erroneous legal standard. The previous IQ

score referenced by Dr. Donaldson does not appear in the record and key

pieces of information are missing. There is no information regarding which

test was administered, who administered it, or what credentials were held by

that individual. Furthermore, where more than one score is derived, the

lowest score is used to determine whether the Listing is met. Even if the

purported score from 1989 is valid, that score ceased to be valid in October

1991 because scores obtained prior to age 16 are viewed as a current for 2

years when the IQ is 40 or above. 

• The administrative law judge failed to properly evaluate plaintiff's credibility.

Plaintiff argues that the administrative law judge is not permitted to make

credibility determinations based solely upon an intangible or intuitive notion

about an individuals credibility. The reviewing physicians who examined the

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evidence of record and compared Baker’s statements concerning her limitations

against the objective record and found that plaintiff’s allegations were credible.

Plaintiff maintains that the administrative law judge impermissible played

doctor by reaching this conclusion and overriding the evaluations of the experts. Plaintiff further argues that the administrative law judge erred when he

questioned the sporadic nature of Baker’s work history prior to her alleged

onset date. Plaintiff maintains that she attempted to work and repeatedly ended up in jobs that were too challenging for her. As a result, she was forced to

leave those jobs because she lacked the mental capacity to perform the jobs. The

administrative law judge also improperly criticized plaintiff for her attempts to

work after her onset date. Plaintiff’s attempts never constituted substantial

gainful activity. The regulations allow individuals to continue to try to work

without penalizing them if they are unsuccessful. 

Analysis. 

Listing 12.05C. Listing 12.05C provides in pertinent part:

12.05 Mental retardation: Mental retardation refers to significantly subaverage general intellectual functioning with deficits in adaptive functioning initially manifested during the developmental period; i.e., the evidence demonstrates or supports onset of the impairment before age 22.

The required level of severity for this disorder is met when the requirements in A, B, C, or D are satisfied.

. . . 

C. A valid verbal, performance, or full scale IQ of 60 through 70 and a

physical or other mental impairment imposing an additional and significant work-related limitation of function.

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20 C.F.R. Pt. 404, Subpt. P, App. 1. To meet the listing for mental retardation, an impairment must satisfy both the diagnostic description in the introductory paragraph of §

12.05 and one of the four sets of criteria found in subparagraphs A through D. Foster v.

Halter, 279 F.3d 348, 354-55 (6th Cir. 2001). Valid IQ test scores are essential to meet the

Listing:

The results of standardized intelligence tests may provide data that help

verify the presence of mental retardation or organic mental disorder, as

well as the extent of any compromise in cognitive functioning. However,

since the results of intelligence tests are only part of the overall assessment, the narrative report that accompanies the test results should

comment on whether the IQ scores are considered valid and consistent

with the developmental history and the degree of functional limitation.

20 CFR Pt. 404, Subpt. P, App. 1 

Here, the administrative failed to consider whether plaintiff met or equaled

Listing 12.05C. Additionally, given plaintiff’s age at the time of the 1989 test and the

lack of a corresponding narrative report, it was not proper for the administrative law

judge to rely on the opinions of the consulting psychologists who did not have access to

these records. As a result, it RECOMMENDED that this case be REMANDED for the

administrative law judge to consider whether plaintiff meets or equals Listing 12.05C. 

Credibility Determination. Pain is an elusive phenomena. Ultimately, no one can

say with absolute certainty whether another person's subjectively disabling pain and

other symptoms preclude all substantial gainful employment. The Social Security Act

requires that the claimant establish that he is disabled. Under the Act, a "disability" is

defined as "inability to engage in any substantial gainful activity by reason of any

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medically determinable or mental impairment which can be expected . . . to last for a

continuous period of not less than 12 months. . . ." 42 U.S.C. §423(d)(1)(A) (emphasis

added).

Under the provisions of 42 U.S.C. §423(d)(5)(A), subjective symptoms alone

cannot prove disability. There must be objective medical evidence of an impairment

that could reasonably be expected to produce disabling pain or other symptoms :

An individual's statement as to pain or other symptoms shall not

alone be conclusive evidence of disability as defined in this section;

there must be medical signs and findings, established by medically

acceptable clinical or laboratory diagnostic techniques, which show

the existence of a medical impairment that results from anatomical,

physiological, or psychological abnormalities which could reasonably be expected to produce the pain or other symptoms alleged and

which, when considered with all evidence required to be furnished

under this paragraph (including statements of the individual or his

physician as to the intensity and persistence of such pain or other

symptoms which may reasonably be accepted as consistent with the

medical signs and findings), would lead to a conclusion that the

individual is under a disability. Objective medical evidence of pain

or other symptoms established by medically acceptable clinical or

other laboratory techniques (for example, deteriorating nerve or

muscle tissue) must be considered in reaching a conclusion as to

whether the individual is under a disability.

The Commissioner’s regulations provide a framework for evaluating a claimant’s

symptoms consistent with the commands of the statute:

(a) General. In determining whether you are disabled, we consider

all your symptoms, including pain, and the extent to which your

symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence. By objective medical

evidence, we mean medical signs and laboratory findings as defined

in §404.1528(b) and (c). By other evidence, we mean the kinds of

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evidence described in §§404.1512(b)(2) through (6) and 404.1513(b)

(1), (4), and (5) and (e). These include statements or reports from

you, your treating or examining physician or psychologist, and

others about your medical history, diagnosis, prescribed treatment,

daily activities, efforts to work and any other evidence showing how

your impairment(s) and any related symptoms affect your ability to

work. We will consider all of your statements about your symptoms,

such as pain, and any description you, your physician, your psychologist, or other persons may provide about how the symptoms

affect your activities of daily living and your ability to work. However, statements about your pain or other symptoms will not alone

establish that you are disabled; there must be medical signs and

laboratory findings which show that you have a medical impairment(s) which could reasonably be expected to produce the pain or

other symptoms alleged and which, when considered with all of the

other evidence (including statements about the intensity and persistence of your pain or other symptoms which may reasonably be

accepted as consistent with the medical signs and laboratory findings), would lead to a conclusion that you are disabled. In evaluating the intensity and persistence of your symptoms, including pain,

we will consider all of the available evidence, including your medical

history, the medical signs and laboratory findings and statements

about how your symptoms affect you. (Section 404.1527 explains

how we consider opinions of your treating source and other medical

opinions on the existence and severity of your symptoms, such as

pain.) We will then determine the extent to which your alleged

functional limitations and restrictions due to pain or other symptoms

can reasonably be accepted as consistent with the medical signs and

laboratory findings and other evidence to decide how your

symptoms affect your ability to work.

20 C.F.R. §404.1529(a). A claimant’s symptoms will not be found to affect his ability to

work unless there is a medically determinable impairment that could reasonably be

expected to produce them. 20 C.F.R. § 404.1529(b). If so, the Commissioner then evaluates the intensity and persistence of the claimant’s pain and other symptoms and

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determines the extent to which they limit his ability to work. 20 C.F.R. § 404.1529(c). In

making the determination, the Commissioner considers

all of the available evidence, including your history, the signs and laboratory findings, and statements from you, your treating or nontreating

source, or other persons about how your symptoms affect you. We also

consider the medical opinions of your treating source and other medical

opinions . . . .

Id.

In this evaluation of a claimant’s symptoms, the Commissioner considers both

objective medical evidence and “any other information you may submit about your

symptoms.” 20 C.F.R. § 404.1529(c)(2). The regulation further provides:

Because symptoms, such as pain, are subjective and difficult to quantify,

any symptom-related functional limitations and restrictions which you,

your treating or nontreating source, or other persons report, which can

reasonably be accepted as consistent with the objective medical evidence

and other evidence, will be taken into account as explained in paragraph

(c)(4) of this section in reaching a conclusion as to whether you are disabled. We will consider all of the evidence presented, including information about your prior work record, your statements about your symptoms,

evidence submitted by your treating or nontreating source, and observations by our employees and other persons. Section 404.1527 explains in

detail how we consider and weigh treating source and other medical

opinions about the nature and severity of your impairment(s) and any

related symptoms, such as pain. Factors relevant to your symptoms, such

as pain, which we will consider include:

(I) Your daily activities;

(ii) The location, duration, frequency, and intensity of your pain or

other symptoms;

(iii) Precipitating and aggravating factors;

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(iv) The type, dosage, effectiveness, and side effects of any medication

you take or have taken to alleviate your pain or other symptoms;

(v) Treatment, other than medication, you receive or have received for

relief of your pain or other symptoms;

(vi) Any measures you use or have used to relieve your pain or other

symptoms (e.g., lying flat on your back, standing for 15 to 20 minutes

every hour, sleeping on a board, etc.); and

(vii) Other factors concerning your functional limitations and restrictions due to pain or other symptoms.

 20 C.F.R. § 404.1529(c)(3). When determining the extent to which a claimant’s symptoms limit his ability to work, the Commissioner considers whether the claimant’s

statements about the symptoms is supported by or inconsistent with other evidence of

record:

In determining the extent to which your symptoms, such as pain, affect

your capacity to perform basic work activities, we consider all of the

available evidence described in paragraphs (c)(1) through (c)(3) of this

section. We will consider your statements about the intensity, persistence,

and limiting effects of your symptoms, and we will evaluate your statements in relation to the objective medical evidence and other evidence, in

reaching a conclusion as to whether you are disabled. We will consider

whether there are any inconsistencies in the evidence and the extent to

which there are any conflicts between your statements and the rest of the

evidence, including your history, the signs and laboratory findings, and

statements by your treating or nontreating source or other persons about

how your symptoms affect you. Your symptoms, including pain, will be

determined to diminish your capacity for basic work activities to the

extent that your alleged functional limitations and restrictions due to

symptoms, such as pain, can reasonably be accepted as consistent with the

objective medical evidence and other evidence.

 20 C.F.R. § 404.1529(c)(4).

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SSR 96-7p explains the two-step process established by the Commissioner’s regulations

for evaluating a claimant’s symptoms and their effects: 

First, the adjudicator must consider whether there is an underlying 

medically determinable physical or mental impairment(s)--i.e., an

impairment(s) that can be shown by medically acceptable clinical

and laboratory diagnostic techniques--that could reasonably be expected

to produce the individual’s pain or other symptoms. The finding that an

individual’s impairment(s) could reasonably be expected to produce the

individual’s pain or other symptoms does not involve a determination as

to the intensity, persistence, or functionally limiting effects of the

individual’s symptoms. . . .

 Second, once an underlying physical or mental impairment(s) that

could reasonably be expected to produce the individual’s pain or

other symptoms has been shown, the adjudicator must evaluate

the intensity, persistence, and limiting effects of the individual’s

symptoms to determine the extent to which the symptoms limit

the individual’s ability to do basic work activities. For this

purpose, whenever the individual’s statements about the intensity,

 persistence, or functionally limiting effects of pain or other

symptoms are not substantiated by objective medical evidence,

the adjudicator must make a finding on the credibility of the individual’s

statements based on a consideration of the entire case record. 

When additional information is needed to assess the credibility of

the individual’s statements about symptoms and their effects, the

adjudicator must make every reasonable effort to obtain available

information that could shed light on the credibility of the

individual’s statements. In recognition of the fact that an

individual’s symptoms can sometimes suggest a greater level of

severity of impairment than can be shown by the objective

medical evidence alone, 20 C.F.R. § 404.1529(c) and 416.929(c)

describe the kinds of evidence, including the factors below, that

the adjudicator must consider in addition to the objective

medical evidence when assessing the credibility of an

individual’s statements:

1. The individual’s daily activities;

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2. The location, duration, frequency, and intensity of the

individual’s pain or other symptoms;

3. Factors that precipitate and aggravate the symptoms;

4. The type, dosage, effectiveness, and side effects of any

medication the individual takes or has taken to alleviate

pain or other symptoms;

5. Treatment, other than medication, the individual receives

 or has received for relief of pain or other symptoms;

6. Any measures other than treatment the individual uses

or has used to relieve pain or other symptoms (e.g. lying

flat on his or her back, standing for 15 to 20 minutes every

hour, or sleeping on a board); and

7. Any other factors concerning the individual’s functional

limitations and restrictions due to pain or other symptoms.

Case law interpreting the statute and regulations. At the outset, it is important to

keep in mind that symptoms are the claimant’s “description of [his/her] physical or

mental impairment.” 20 C.F.R. § 404.1528(a). Inevitably, evaluating symptoms involves

making credibility determinations about the reliability of the claimant’s self-report of

his symptoms. Smith ex rel E.S.D. v. Barnhart, 157 Fed.Appx. 57, 62 (10th Cir. December.

5, 2005) (not published)(“Credibility determinations concern statements about symptoms.”) 

“Where the symptoms and not the underlying condition form the basis of the

disability claim, a two-part analysis is used in evaluating complaints of disabling pain.” 

Rogers v. Commissioner of Social Sec., 486 F.3d 234, 247 (2007); SSR 96-7p, 1996 WL 374186

(July 2, 1996). That test was first set out in Duncan v. Secretary of Health and Human

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Services, 801 F.2d 847, 853 (6th Cir. 1986). First, the Court must determine "whether there

is objective medical evidence of an underlying medical condition." If so, the Court must

then

examine: (1) whether objective medical evidence confirms the

severity of the alleged pain arising from the condition; or (2)

whether the objectively established medical condition is of such a

severity that it can reasonably be expected to produce the alleged

disabling pain.

Duncan, 801 F.2d at 853. Any "credibility determinations with respect to subjective

complaints of pain rest with the ALJ." Siterlet v. Secretary of Health and Human Services,

823 F.2d 918, 920 (6th Cir. 1987); Rogers, 486 F.3d at 247 (citing Walters v. Comm'r of Soc.

Sec., 127 F.3d 525, 531 (6th Cir.1997); Crum v. Sullivan, 921 F.2d 642, 644 (6th Cir.1990);

Kirk v. Sec'y of Health & Human Servs., 667 F.2d 524, 538 (6th Cir.1981)). The ALJ is

required to explain her credibility determination in her decision, which “‘must be

sufficiently specific to make clear to the individual and to any subsequent reviewers the

weight the adjudicator gave to the individual’s statements and the reasons for that

weight.’” See id. (quoting SSR 96-7p). Furthermore, the ALJ’s decision must be supported by substantial evidence. Rogers, 486 F.3d at 249. 

Discussion of ALJ’s credibility determination. The administrative law judge

stated:

In terms of the claimant’s alleged physical impairments, the undersigned

finds that the record contains evidence that undermines her allegations.

Many of the claimant’s physical examinations yielded unremarkable findings. During a September 2009 consultative physical examination, the

claimant demonstrated a normal gait without any assistive devices.

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(Exhibit 2F). Her shoulders also exhibited a full range of motion, despite

some bilateral crepitus. (Id.). Further, the claimant demonstrated normal

muscle strength in her upper and lower extremities, no muscle spasms or

atrophy, and full range of motion in the cervical spine – despite some

limited range of motion in the dorsolumbar spine. (Id.). 

An x-ray of the claimant’s right shoulder revealed that it was normal. (Id.).

She also had a normal toe, heel, and tandem walk, her cranial nerves II-XII

were intact, and her straight leg raise was negative in both the supine and

seated positions. (I.d). The claimant was also able to perform a deep knee

bend 50%. (Id.).

In addition, the record indicates that the claimant has sought little treatment for her allegedly disabling symptoms. Moreover, the undersigned

finds that her sporadic work record prior to the alleged disability onset

date, which raises the question as to whether he claimant’s continuing

unemployment is actually due to medical impairments or a matter of

lifestyle. (Exhibits 2D, 3D, 4D, and 5D). Her work record certainly does

not enhance her allegations. Further, as discussed above, the record

reflects some work activity after the alleged onset date. (Id. and Hearing

Testimony). Although the work activity did not constitute disqualifying

substantial gainful activity, it does indicate that the claimant’s daily

activities have, at least at times, contradicted her allegations of disability. 

(R. 14-15.) 

Because the administrative law judge failed to consider whether plaintiff met or

equaled Listing 12.05C, he failed to consider whether plaintiff allegations of a cognitive

impairment precluded substantial gainful activity were credible. On remand, the administrative law judge should consider plaintiff’s allegations concerning her cognitive

impairment when making his credibility determination. 

For the reasons stated above, the Magistrate Judge RECOMMENDS that this case

be REMANDED for consideration of whether plaintiff meets or equals Listing 12.05C.

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If any party objects to this Report and Recommendation, that party may, within

fourteen (14) days, file and serve on all parties a motion for reconsideration by the

Court, specifically designating this Report and Recommendation, and the part thereof

in question, as well as the basis for objection thereto. 28 U.S.C. §636(b)(1)(B); Rule 72(b),

Fed. R. Civ. P.

The parties are specifically advised that failure to object to the Report and

Recommendation will result in a waiver of the right to de novo review by the District

Judge and waiver of the right to appeal the judgment of the District Court. Thomas v.

Arn, 474 U.S. 140, 150-52 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). See

also, Small v. Secretary of Health and Human Services, 892 F.2d 15, 16 (2d Cir. 1989). 

 s/Mark R. Abel 

United States Magistrate Judge 

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